SBM Home
Copyright 2002
State Bar of Michigan

Tuesday, July 2, 2002

Case Summaries

Civil Rights

    This summary also appears under Employment & Labor Law

    Issues: Disability discrimination in violation of the Rehabilitation Act; Whether plaintiff-former employee was disabled from any "major life activity"; Whether plaintiff met the test for being "regarded as disabled"; Americans with Disabilities Act
    Court: U.S. Court of Appeals Sixth Circuit
    Case Name: Mahon v. Crowell
    e-Journal Number: 15451
    Judge(s): Merritt, Daughtrey, and Wells

    Plaintiff-former employee's back injury did not substantially limit a "major life activity" so as to render him disabled under the Rehabilitation Act. Plaintiff failed to show his physical impairments considerably or profoundly limited his ability to sit, stand, bend, stoop, walk, climb, or lift. While the record did show his impairment caused him distress and limited him in performing some activities, the court could not say he was severely restricted in any of them. Plaintiff also claimed he was substantially limited in the major life activity of working, and produced evidence was that he had suffered a 47 percent loss of access to his job market. However, the court concluded it would be using a less-than-demanding standard if it were to find plaintiff substantially limited in working when he still qualified for over half the jobs he qualified for before his injury. Summary judgment for defendants was affirmed.

    Full Text Opinion

Contracts

    This summary also appears under Negligence & Intentional Tort

    Issues: Common law conversion; Whether equity entitled defendant to the disputed check; Evidence of settlement negotiations; Treble damages pursuant to MCL 600.2919a; Alleged discovery abuses; Removal
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Follmer, Rudzewicz & Co., PC v. Bolos
    e-Journal Number: 15424
    Judge(s): Per Curiam—Kelly, Murphy, and Murray

    The trial court did not err in granting summary disposition in plaintiff-employer's favor regarding its claim of common law conversion. The issue was resolved by defendant-former employee's own express admission she was supposed to sign over to plaintiff the $11,060 check for services rendered by her company to a third-party during her employment with plaintiff. Defendant admitted there was no agreement with plaintiff allowing her to keep any portion of the check. Defendant also admitted upon receiving the check, she failed to sign it over to plaintiff and subsequently cashed the check. Although defendant claimed the employment contract entitled her to keep the money in dispute, the court concluded the contract was unambiguous and clear, and provided defendant with no express entitlement to the money. Affirmed.

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    Issues: Alleged breach of an asset purchase agreement; Enforcement of arbitration provision; Fraud in the inducement; Denial of motion to amend complaint; Whether the dispute regarding the tort claims was arbitrable
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Vic's Quality Fruit Mkt., III, Inc. v. Busch's, Inc.
    e-Journal Number: 15433
    Judge(s): Per Curiam—Neff, Griffin, and Talbot

    The trial court did not err in granting summary disposition to defendants on the basis of the arbitration provision in the asset purchase agreement. Under the agreement, defendants would purchase two supermarkets from plaintiffs. The agreement included an arbitration provision governing any disputes arising over the terms of the agreement, and an integration clause. Plaintiffs' lawsuit alleged breach of contract, fraud, trade secret misappropriation, and tortious interference with a business relationship. Plaintiffs argued the arbitration provision should not be enforced because it was induced by fraud and was void. The court held the plaintiffs failed to allege circumstances constituting fraudulent inducement to render the arbitration provision voidable. Plaintiffs' reliance on oral representations by one of the defendants was unreasonable. Affirmed.

    Full Text Opinion

Criminal Law

    Issues: Sufficiency of evidence to support defendant's second-degree murder conviction; Upward departure from the sentencing guidelines
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Coleman
    e-Journal Number: 15438
    Judge(s): Per Curiam—Neff, Griffin, and Talbot

    There was sufficient evidence to support defendant's second-degree murder conviction because there was not adequate evidence of provocation on the part of the victim as defendant argued, to reduce the homicide to voluntary manslaughter. Defendant and the victim exchanged words, which obviously insulted or embarrassed defendant, but the two never came to blows. Defendant left and later returned and shot the unarmed intoxicated victim in cold blood in the middle of the street in front of his mother and numerous witnesses. The court agreed with the trial court there was no justification for the killing. Affirmed.

    Full Text Opinion

    Issues: Sufficiency of evidence to convict of assault with intent to commit murder and felony-firearm; Whether the trial court based its verdict on a mistake of fact
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Decker
    e-Journal Number: 15449
    Judge(s): Memorandum—Zahra, Cavanagh, and White

    There was sufficient evidence to justify a rational trier of fact in finding the defendant committed the crimes beyond a reasonable doubt. Defendant argued the witness testimony established he was at a nearby gas station at 6:45 a.m., the time the victim was shot in the bakery parking lot. The witnesses testified as to the approximate times the events occurred. The victim testified he arrived at the bakery parking lot about 6:45 a.m. and was shot by defendant shortly thereafter. Another witness testified he arrived at the bakery at 6:45 a.m., and the victim had already been shot. Other witnesses and defendant testified the time frame was slightly different. Defendant's convictions were affirmed.

    Full Text Opinion

    Issues: Sufficiency of evidence to support defendant's conviction of armed robbery; Whether the verdict was against the great weight of the evidence; Ineffective assistance of counsel
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Riley
    e-Journal Number: 15444
    Judge(s): Per Curiam—Neff, Griffin, and Talbot

    There was sufficient evidence to support defendant's conviction of armed robbery on an aiding and abetting theory. Defendant claimed he was not involved. The evidence established defendant was involved in the planning, organizing, and commission of the robbery of his place of work. Entry to the building could only be gained by the door being opened from the inside and a co-worker testified he opened the door for defendant and another individual, who put on a mask after entering the building and appeared to reach in his pants for a gun. Affirmed.

    Full Text Opinion

    Issues: Sufficient evidence to support convictions of felonious assault and felony-firearm; Whether verdict was against the great weight of the evidence
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Royal
    e-Journal Number: 15440
    Judge(s): Per Curiam—Zahra, Cavanagh, and White

    While defendant presented witnesses who claimed she did not fire any shots during the incident, there was sufficient evidence to allow reasonable jurors to find defendant fired a gun intending to injure the complainants or cause them to reasonably fear an immediate battery. It was the province of the jury to assess the witnesses' credibility and to weigh the evidence. One complainant, Wright, testified defendant threatened to kill her on two separate occasions and gave her reason to believe she possessed a gun. Several witnesses testified there was a heated argument involving defendant, Wright, and Wright's roommate, Cromer. Wright, Cromer, and a neighbor all testified to hearing several gunshots. Cromer claimed to have actually seen defendant firing the gun in her direction. Defendant's convictions of felonious assault and felony-firearm were affirmed.

    Full Text Opinion

    Issues: Sufficiency of evidence to support defendant's conviction of possession of less than 25 grams of marijuana; Whether the prosecution failed in disproving every innocent theory
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Schneidt
    e-Journal Number: 15435
    Judge(s): Per Curiam—Holbrook, Jr, Gage, and Meter

    There was sufficient evidence to support defendant's conviction of possession of less than 25 grams of marijuana. Defendant claimed there was insufficient evidence to support a finding he possessed the marijuana found in his home. The evidence was sufficient to establish defendant's constructive possession over the marijuana. The marijuana was located in defendant's home and in the bedroom he admitted sharing with his wife. The marijuana cigarette was in plain view of the bed where defendant sat and an additional approximately eight ounces of marijuana was located in the headboard of the bed, where he had indicated it would be found. Affirmed.

    Full Text Opinion

    Issues: Prosecutorial misconduct; Ineffective assistance of counsel
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Smith
    e-Journal Number: 15441
    Judge(s): Per Curiam—Zahra, Cavanagh, and White

    The defendant was not denied a fair trial by the prosecutor's repeated references in closing argument to the evidence as "undisputed." The prosecutor's remarks were not direct references to defendant's failure to testify, and when read in the context of the entire trial, were "not manifestly intended to be . . . of such a character that the jury necessarily took them to be a comment on the failure of defendant to testify." The prosecutor's remark in closing that "I ask you to listen carefully to see if the arguments are coming regarding the elements of the case," did not improperly shift the burden of proof to defendant. Any prejudicial effect could have been cured by a timely jury instruction and defendant did not show outcome determinative plain error. Affirmed.

    Full Text Opinion

    Issues: Identification evidence; People v. Gray; Whether the trial court showed judicial bias; Prosecutorial discovery violations; Admissibility of evidence of contents of a note pad; Sentencing as a second habitual offender
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Sproessig
    e-Journal Number: 15409
    Judge(s): Per Curiam—Neff, Griffin, and Talbot

    Although the pretrial identification procedures used by the police were impermissibly suggestive where the police informed the victim of defendant's arrest and the officer in charge of the case showed her a photograph of defendant, whom she identified as her assailant, there was a sufficient independent basis for the victim's identification of defendant. Using the Gray analysis, the court concluded the victim, a real estate sales person, had an excellent opportunity to observe defendant while she was working alone in a model home and defendant arrived to view the home. The victim stood next to her assailant in the brightly lit room and talked to him for approximately five minutes. After the man looked around the house, the victim and man twice again engaged in face-to-face conversations for several minutes. There was also an opportunity for the victim to observe her assailant during the course of the sexual assaults. Affirmed.

    Full Text Opinion

    Issues: Instructional error; The diminished capacity defense; People v. Carpenter
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Talton
    e-Journal Number: 15439
    Judge(s): Per Curiam—Neff, Griffin, and Talbot

    Concluding retroactive application of Carpenter (which abolished the diminished capacity defense), to defendant did not violate the Ex Post Facto Clauses of the state and federal constitutions or implicate any due process concerns, the court held the trial court's instructions to the jury regarding diminished capacity did not constitute plain error requiring reversal. The prosecution alleged after defendant's wife informed him the victim had made improper advances toward her, defendant went to house where the victim was visiting, and shot him once in the neck. Defendant argued he was suffering from diminished capacity at the time. Defendant claimed the trial court erroneously instructed the jury he had the burden of proving the defense of diminished capacity by a preponderance of the evidence, declined to explain the applicable standard, and Carpenter should not be applied retroactively. Defendant's convictions for second-degree murder and felony-firearm were affirmed.

    Full Text Opinion

    Issues: Sufficiency of evidence to convict of aiding and abetting an assault with intent to rob while armed; Ineffective assistance of counsel; Batson challenge
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Wilcox
    e-Journal Number: 15412
    Judge(s): Per Curiam—Neff, Griffin, and Talbot

    There was sufficient evidence to support defendant-Wilcox's conviction of aiding and abetting an assault with intent to rob while armed in an incident where Wilcox and two codefendants allegedly assaulted and robbed a party store owner. All three were convicted of the same crime following a joint trial. Wilcox argued the evidence established he was merely present during the assault. There was evidence the victim was familiar with Wilcox as a regular customer and knew his name. On the day of the incident, Wilcox went into the store five or six times and again entered about 7:00 p.m. with the codefendants. Wilcox asked for two cases of a specific beer causing the victim to leave the bullet-proof area and go to the back cooler. On the victim's second trip back to the cooler, he was struck from behind with beer bottles As he ran to the front door, he saw Wilcox run to the back of the store, and he was then stabbed by a codefendant who demanded money. All three defendants' convictions were affirmed.

    Full Text Opinion

Employment & Labor Law

    Issues: Enforcement of orders against petitioner-employer based on anti-union activity in violation of the National Labor Relations Act (the Act); Unlawful constructive discharge of an employee who testified against plaintiff while labor proceedings were pending; Discharge, reprimand, failure to recall, and lay off of employees; Failure to bargain with the union; Jurisdiction
    Court: U.S. Court of Appeals Sixth Circuit
    Case Name: FiveCAP, Inc. v. National Labor Relations Bd.
    e-Journal Number: 15450
    Judge(s): Cole, Martin, and Sharp

    The court enforced both of the NLRB's orders against petitioner-employer on the basis it engaged in anti-union organizing activity in violation of 8(a)(1), 8(a)(3), 8(a)(4), and 8(a)(5) of the Act, with one exception. The court was satisfied petitioner had engaged in unlawful constructive discharge of an employee who testified against petitioner while labor proceedings were pending. The employee resigned because she could no longer work under the conditions placed upon her by her supervisors. The court agreed reprimands for failing to comply with contrived policies, false accusations of theft, and demotion despite extensive experience ultimately created unbearable work conditions, causing the employee's constructive discharge. The court found it self-evident any reasonable person subjected to similar conditions would be compelled to resign.

    Full Text Opinion

    This summary also appears under Civil Rights

    Issues: Disability discrimination in violation of the Rehabilitation Act; Whether plaintiff-former employee was disabled from any "major life activity"; Whether plaintiff met the test for being "regarded as disabled"; Americans with Disabilities Act
    Court: U.S. Court of Appeals Sixth Circuit
    Case Name: Mahon v. Crowell
    e-Journal Number: 15451
    Judge(s): Merritt, Daughtrey, and Wells

    Plaintiff-former employee's back injury did not substantially limit a "major life activity" so as to render him disabled under the Rehabilitation Act. Plaintiff failed to show his physical impairments considerably or profoundly limited his ability to sit, stand, bend, stoop, walk, climb, or lift. While the record did show his impairment caused him distress and limited him in performing some activities, the court could not say he was severely restricted in any of them. Plaintiff also claimed he was substantially limited in the major life activity of working, and produced evidence was that he had suffered a 47 percent loss of access to his job market. However, the court concluded it would be using a less-than-demanding standard if it were to find plaintiff substantially limited in working when he still qualified for over half the jobs he qualified for before his injury. Summary judgment for defendants was affirmed.

    Full Text Opinion

    Issues: Federal preemption of the jurisdiction of the Michigan Employment Relations Commission (MERC); Question of who was the actual employer; Control test; AFSCME v. Department of Mental Health
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Mosaica Academy of Saginaw v. Michigan Educ. Ass'n
    e-Journal Number: 15431
    Judge(s): Per Curiam—Owens, Sawyer, and Cooper

    While it seemed clear appellant-Mosaica Academy was a public entity subject to state labor relations law and Mosaica Education, Inc. was a private entity subject to federal law, which one was the actual employer was vital to determining jurisdiction and the case had to be deferred to the NLRB. If Mosaica Academy was the actual employer, the MERC properly asserted jurisdiction. However, it was unclear who the actual employer was, and since the NLRB withdrew the control test ordinarily used for determining who is the actual employer, deference to the NLRB was necessary. Therefore, the MERC's decision asserting its own jurisdiction was an error of law in violation of the federal preemption doctrine. The MERC decision and direction of election finding Mosaica Academy was the actual employer was vacated.

    Full Text Opinion

Family Law

    Issues: Termination of parental rights; Trial court's exercise of jurisdiction relying solely on prior orders and findings in proceedings involving the child's siblings; MCL 712A.2(b); In re Hatcher; In re PAP; Construing MCL 712A.2(b) together with the Uniform Child Custody Jurisdiction Act as one law
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: In re J.R.C.
    e-Journal Number: 15443
    Judge(s): Per Curiam—Zahra, Cavanagh, and White

    The trial court erred in concluding it had jurisdiction over the child on the basis of its jurisdiction over the child's siblings, and because respondent-mother was denied a trial on the question of jurisdiction, reversal of the order terminating her parental rights to the child was required. The court rejected the argument the mother was barred from challenging the trial court's exercise of jurisdiction. Since the mother's parental rights were terminated at the initial dispositional hearing, and the dispositional order was the first order from which an appeal of right was available, the trial court's exercise of jurisdiction was not collateral to this appeal. Reversal was required because the failure to afford the mother a trial of any kind at the adjudicatory stage on the question of jurisdiction was in the nature of a structural defect for which prejudice need not be shown. Reversed and remanded.

    Full Text Opinion

    Issues: Termination of parental rights; Family unification
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: In re S.M.H.
    e-Journal Number: 15454
    Judge(s): Memorandum—Neff, Griffin, and Talbot

    The respondent-mother's parental rights were properly terminated. The mother argued the petitioner did not make reasonable efforts toward family unification, but failed to indicate what additional services should have been offered to her. The mother received various referrals and assistance from petitioner for individual therapy, family therapy, parenting classes, substance abuse services, and was provided with housing assistance. However, for over two years the mother failed to avail herself of the help offered to address her substance abuse issues, improve her parenting skills, and she failed comply with her services plan as required. Affirmed.

    Full Text Opinion

    Issues: Custody; Failure to establish proper cause or a change of circumstances; Whether the trial court was required to hold an evidentiary hearing; MCR 3.210(C)(7)
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Perkey v. Perkey
    e-Journal Number: 15446
    Judge(s): Per Curiam—Neff, Griffin, and Talbot

    The trial court correctly determined plaintiff-father failed to establish either proper cause or a change in circumstances warranting a change of custody. The fact the children may have expressed a desire to live with plaintiff was not a sufficient basis upon which to revisit custody. The court was also not convinced a change of circumstances existed regarding the children's academic difficulties, the differences between the parties' parenting styles and discipline techniques, defendant's temper and use of "inappropriate language" in the custodial home, and defendant's alleged attempts to "sabotage" the relationship between plaintiff and the children. The record showed these were the same circumstances that, according to plaintiff, existed in 1999, and were the same issues he raised in an unsuccessful motion for change of custody then. The trial court's order denying plaintiff's motion was affirmed.

    Full Text Opinion

Insurance

    Issues: Loss of business income policy provision; Effect of plaintiff-physician's merger of his business with an integrated practice group and entry into an employment contract with the group; Insurable interest
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Dutt v. Farm Bureau Mut. Ins. Co.
    e-Journal Number: 15434
    Judge(s): Per Curiam—Zahra, Cavanagh, and White

    The plain language of the policy did not require plaintiff-physician to hold an ownership or leasehold interest in the office building in which he practiced in order to recover lost business income based on damage to the building. Defendant-insurer argued because plaintiff did not own the business personal property at the time of the fire, he was not entitled to lost business income. However, the fact plaintiff was not entitled to benefits related to the business personal property subject to the policy was not dispositive of whether he was entitled to business income loss. Plaintiff argued, and the court agreed, he was entitled to business income loss benefits on the alternative basis the loss was caused by damage to the building described in the policy declarations. The policy did not indicate recovery of lost business income was contingent on the insured owning the building referenced. Summary disposition, in part, for plaintiff was affirmed.

    Full Text Opinion

    Issues: Property protection benefits under the no-fault act; Whether automobiles in the process of being hauled on an auto-transport vehicle were "vehicles" under 3123; "Contents" under 3123; Whether the automobiles were "parked" pursuant to the no-fault act
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: E & L Transp. Co., LLC v. Warner Adjustment Co.
    e-Journal Number: 15425
    Judge(s): Per Curiam—Owens, Sawyer, and Cooper

    Under a plain reading of the no-fault act, plaintiff was not entitled to property protection benefits for damage to automobiles on plaintiff's auto-transport vehicle when it was negligently struck by a semi-truck owned by one defendant and insured by another. Plaintiff argued since the automobiles were "vehicles," designed for operation on a public highway, they could not also be treated as "contents" of the auto-transport vehicle. The court disagreed, concluding the word "contents" as used in 3123 is synonymous with something carried or transported, such as cargo, and it is axiomatic an object contained in or on a vehicle becomes contents of the vehicle, though retaining its original identity. Although the automobiles were designed for use on the highway, they were "contents" of the auto-transport when they were damaged, and were excluded from property protection benefits under 3123. Summary disposition for defendants was affirmed.

    Full Text Opinion

Litigation

    This summary also appears under Tax

    Issues: Whether the proceedings were governed byChapter Two of the Michigan Court Rules related to civil procedure rather than the provisions of MCR 7.101 regarding appellate rules; The Tobacco Products Tax Act (TPTA); Burden of proof
    Court: Michigan Court of Appeals (Published)
    Case Name: Keweenaw Bay Outfitters & Trading Post v. Department of Treasury
    e-Journal Number: 15456
    Judge(s): Per Curiam—Griffin, Hood, and Sawyer

    The trial court properly held its proceeding under the TPTA regarding the seizure of tobacco products was governed byChapter Two of the Michigan Court Rules rather than the provisions of MCR 7.101, because the appeal of the agency decision to the trial court was governed by the same rules of practice and procedure as an in rem, civil proceeding under MCL 205.429(4). Petitioners' tobacco products were seized because there was no tax stamp affixed to them and were forfeited to the State of Michigan following an administrative hearing. Petitioners appealed to the circuit court. The trial court asked the parties what procedural rules should control the proceedings. The court held that MCR 7.101 could not apply to the appeal from the administrative agency to the trial court. Affirmed.

    Full Text Opinion

    This summary also appears under Municipal

    Issues: Standing to challenge city's casino developer-selection process; Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd.; Conspiracy claims
    Court: U.S. Court of Appeals Sixth Circuit
    Case Name: Beztak Land Co. v. City of Detroit
    e-Journal Number: 15453
    Judge(s): Gilman, Norris, and Siler

    Plaintiff lacked standing to challenge defendant-city's casino developer-selection process because plaintiff repeatedly declared it did not seek to operate a casino and an applicant's intent to develop and operate a casino was a necessary predicate to establish standing for such a challenge. The definitions contained in both the city's Selection Ordinance and its Request for Proposals/Qualifications limited applicants to those who were prepared to develop and operate a casino, and plaintiff, by its own admission, had no such intentions. Rather, plaintiff wanted to develop the property for a permanent casino by leasing or selling the site on a participating basis to a casino operator. The court concluded preparing a site plan in conjunction with a casino operator and negotiating with such an entity were not the equivalent of entering into a legal relationship whereby a casino operator had committed to develop and operate a casino on the site. The district court did not err in dismissing plaintiff's claims. Affirmed.

    Full Text Opinion

    Issues: Denial of certain litigation costs; Motion filing fees; Fees for service of subpoenas; MCL 600.2552(1); MCL 600.2164(1); Deposition and expert witness costs and fees; Taxable fees and travel expenses for expert witness
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Doyle v. Archbold Ladder Co.
    e-Journal Number: 15415
    Judge(s): Per Curiam—Neff, Griffin, and Talbot

    The court affirmed in part, reversed in part, and remanded issues related to defendants' bill of costs requesting $17,823.77 for various expenses and fees submitted after they prevailed in this product liability lawsuit. The court agreed with defendant they were entitled to fees of $20 per motion on five of the six motions they documented. The court held the trial court properly denied defendants' request to tax their service of subpoena fees to the custodians of records of plaintiffs' medical providers, because defendant failed to show the witnesses attended any proceeding in the case. The trial court also properly declined to allow as taxable costs, the expert witness fees and travel expenses covering discovery-only videotaped depositions of two of plaintiffs' experts. The court concluded the fees failed to meet the applicable statute's purposes for taxable costs. Finally, the court affirmed part of the expenses allowed by the trial court to defendants for taxation of their expert's witness fees, concluded the trial court erroneously disallowed the expert's travel expenses, and remanded for determination of other aspects of the expert's fees and expenses.

    Full Text Opinion

    This summary also appears under Municipal

    Issues: Mootness; Effect of plaintiff-township's complying with trial court's ruling; Waiver of right to appellate review; Zoning board of appeals (ZBA)
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Harrisville Twp. v. Apsey
    e-Journal Number: 15437
    Judge(s): Per Curiam—Owens, Sawyer, and Cooper

    Since plaintiff-township complied with the trial court's ruling to seek ZBA approval before initiating court action over the alleged township ordinance violation again, the question of the validity of that ruling was an abstract one. Further, the court could grant plaintiff no relief since plaintiff had already complied with the instructions to seek ZBA review. The issue was moot. Further, by complying with the trial court's instructions, plaintiff intentionally relinquished its right and waived appellate review of the issue. The court dismissed the appeal.

    Full Text Opinion

    This summary also appears under Real Property

    Issues: Collateral estoppel; Res judicata; Claims related to allegation plaintiffs were tricked into signing deeds for a parcel of real property; Fraudulent misrepresentation; Innocent misrepresentation; Conspiracy to commit fraud; Exemplary damages
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Van Sullen v. Kelly
    e-Journal Number: 15428
    Judge(s): Per Curiam—Holbrook Jr., Gage, and Meter

    Collateral estoppel precluded relitigation of the issue of plaintiffs' claim they were tricked into signing the deeds to the real property and did not know what they were when they signed them. In a prior case in another county, which plaintiffs argued was an action to quiet title, not for fraud, the other trial court found plaintiffs were aware of the nature of the documents they signed and did not rely on false representations when they signed them. The basis for the prior judgment was clear, definitive, and unequivocal, and the judgment was valid. Plaintiffs could not establish either fraudulent or innocent misrepresentation because they could not establish defendant-Michael Kelly misrepresented the nature of the deeds. The court further held plaintiffs' present lawsuit, despite the addition of three new defendants, was barred by res judicata. Summary disposition for defendants was affirmed.

    Full Text Opinion

Municipal

    This summary also appears under Litigation

    Issues: Standing to challenge city's casino developer-selection process; Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd.; Conspiracy claims
    Court: U.S. Court of Appeals Sixth Circuit
    Case Name: Beztak Land Co. v. City of Detroit
    e-Journal Number: 15453
    Judge(s): Gilman, Norris, and Siler

    Plaintiff lacked standing to challenge defendant-city's casino developer-selection process because plaintiff repeatedly declared it did not seek to operate a casino and an applicant's intent to develop and operate a casino was a necessary predicate to establish standing for such a challenge. The definitions contained in both the city's Selection Ordinance and its Request for Proposals/Qualifications limited applicants to those who were prepared to develop and operate a casino, and plaintiff, by its own admission, had no such intentions. Rather, plaintiff wanted to develop the property for a permanent casino by leasing or selling the site on a participating basis to a casino operator. The court concluded preparing a site plan in conjunction with a casino operator and negotiating with such an entity were not the equivalent of entering into a legal relationship whereby a casino operator had committed to develop and operate a casino on the site. The district court did not err in dismissing plaintiff's claims. Affirmed.

    Full Text Opinion

    This summary also appears under Litigation

    Issues: Mootness; Effect of plaintiff-township's complying with trial court's ruling; Waiver of right to appellate review; Zoning board of appeals (ZBA)
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Harrisville Twp. v. Apsey
    e-Journal Number: 15437
    Judge(s): Per Curiam—Owens, Sawyer, and Cooper

    Since plaintiff-township complied with the trial court's ruling to seek ZBA approval before initiating court action over the alleged township ordinance violation again, the question of the validity of that ruling was an abstract one. Further, the court could grant plaintiff no relief since plaintiff had already complied with the instructions to seek ZBA review. The issue was moot. Further, by complying with the trial court's instructions, plaintiff intentionally relinquished its right and waived appellate review of the issue. The court dismissed the appeal.

    Full Text Opinion

Negligence & Intentional Tort

    This summary also appears under Contracts

    Issues: Common law conversion; Whether equity entitled defendant to the disputed check; Evidence of settlement negotiations; Treble damages pursuant to MCL 600.2919a; Alleged discovery abuses; Removal
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Follmer, Rudzewicz & Co., PC v. Bolos
    e-Journal Number: 15424
    Judge(s): Per Curiam—Kelly, Murphy, and Murray

    The trial court did not err in granting summary disposition in plaintiff-employer's favor regarding its claim of common law conversion. The issue was resolved by defendant-former employee's own express admission she was supposed to sign over to plaintiff the $11,060 check for services rendered by her company to a third-party during her employment with plaintiff. Defendant admitted there was no agreement with plaintiff allowing her to keep any portion of the check. Defendant also admitted upon receiving the check, she failed to sign it over to plaintiff and subsequently cashed the check. Although defendant claimed the employment contract entitled her to keep the money in dispute, the court concluded the contract was unambiguous and clear, and provided defendant with no express entitlement to the money. Affirmed.

    Full Text Opinion

    This summary also appears under Contracts

    Issues: Alleged breach of an asset purchase agreement; Enforcement of arbitration provision; Fraud in the inducement; Denial of motion to amend complaint; Whether the dispute regarding the tort claims was arbitrable
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Vic's Quality Fruit Mkt., III, Inc. v. Busch's, Inc.
    e-Journal Number: 15433
    Judge(s): Per Curiam—Neff, Griffin, and Talbot

    The trial court did not err in granting summary disposition to defendants on the basis of the arbitration provision in the asset purchase agreement. Under the agreement, defendants would purchase two supermarkets from plaintiffs. The agreement included an arbitration provision governing any disputes arising over the terms of the agreement, and an integration clause. Plaintiffs' lawsuit alleged breach of contract, fraud, trade secret misappropriation, and tortious interference with a business relationship. Plaintiffs argued the arbitration provision should not be enforced because it was induced by fraud and was void. The court held the plaintiffs failed to allege circumstances constituting fraudulent inducement to render the arbitration provision voidable. Plaintiffs' reliance on oral representations by one of the defendants was unreasonable. Affirmed.

    Full Text Opinion

Real Property

    This summary also appears under Litigation

    Issues: Collateral estoppel; Res judicata; Claims related to allegation plaintiffs were tricked into signing deeds for a parcel of real property; Fraudulent misrepresentation; Innocent misrepresentation; Conspiracy to commit fraud; Exemplary damages
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Van Sullen v. Kelly
    e-Journal Number: 15428
    Judge(s): Per Curiam—Holbrook Jr., Gage, and Meter

    Collateral estoppel precluded relitigation of the issue of plaintiffs' claim they were tricked into signing the deeds to the real property and did not know what they were when they signed them. In a prior case in another county, which plaintiffs argued was an action to quiet title, not for fraud, the other trial court found plaintiffs were aware of the nature of the documents they signed and did not rely on false representations when they signed them. The basis for the prior judgment was clear, definitive, and unequivocal, and the judgment was valid. Plaintiffs could not establish either fraudulent or innocent misrepresentation because they could not establish defendant-Michael Kelly misrepresented the nature of the deeds. The court further held plaintiffs' present lawsuit, despite the addition of three new defendants, was barred by res judicata. Summary disposition for defendants was affirmed.

    Full Text Opinion

    Issues: Action to quiet title; Reformation of deed based on mutual mistake
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Wheelock-Flake v. Wheelock
    e-Journal Number: 15430
    Judge(s): Per Curiam—Owens, Sawyer, and Cooper

    The trial court did not err in reforming the 1991 deed to correct the mutual mistake, by giving plaintiff and defendant-Ronald Wheelock Jr., each an undivided one-half interest in the 160-acre parcel, and then partitioning the property so each ended up with approximately 80 acres. The parents of plaintiff and defendant-Ronald Wheelock owned the 160-acre parcel. Shortly after their father died in 1985, Ronald prepared a quitclaim deed conveying the parcel from their mother, Betty Wheelock, to herself and Ronald's son, Ronald Jr., as joint tenants. Later, Betty said she had intended to leave half the property to plaintiff. She consulted an attorney who did not realize that, in Michigan, a deed to two parties as joint tenants, without specific language of survivorship, gives either party the right to convey away their interest. Instead, the attorney prepared a document purporting to revoke the "gift" to Ronald Jr. and the 1991 warranty deed conveying Betty's interest. There was undisputed testimony from Betty and her attorney her intent in having the 1991 deed drafted was to convey her one-half interest to plaintiff. The deed failed to do so. Affirmed.

    Full Text Opinion

Tax

    This summary also appears under Litigation

    Issues: Whether the proceedings were governed byChapter Two of the Michigan Court Rules related to civil procedure rather than the provisions of MCR 7.101 regarding appellate rules; The Tobacco Products Tax Act (TPTA); Burden of proof
    Court: Michigan Court of Appeals (Published)
    Case Name: Keweenaw Bay Outfitters & Trading Post v. Department of Treasury
    e-Journal Number: 15456
    Judge(s): Per Curiam—Griffin, Hood, and Sawyer

    The trial court properly held its proceeding under the TPTA regarding the seizure of tobacco products was governed byChapter Two of the Michigan Court Rules rather than the provisions of MCR 7.101, because the appeal of the agency decision to the trial court was governed by the same rules of practice and procedure as an in rem, civil proceeding under MCL 205.429(4). Petitioners' tobacco products were seized because there was no tax stamp affixed to them and were forfeited to the State of Michigan following an administrative hearing. Petitioners appealed to the circuit court. The trial court asked the parties what procedural rules should control the proceedings. The court held that MCR 7.101 could not apply to the appeal from the administrative agency to the trial court. Affirmed.

    Full Text Opinion